(Mrs) Bomo Ivbiyaro (Nee Francis) & Ors. V. Mrs Omokaro Moni Francis (Nee Obire) (2001)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J. C. A.

This is an appeal against the ruling of the Rivers State High Court (D W. Okocha, J.), sitting at Port Harcourt, dismissing an application to re-list a suit dismissed for want of diligent prosecution. The appellants before us, were the plaintiffs before the court below. Hearing of the suit had started before D.W. Abbey-Kalio, J., with the evidence-in-chief of P.W.1. The witness had not been cross-examined as at 6/12/95, when the learned trial Judge dismissed the suit for want of diligent prosecution, because the plaintiffs and their counsel were absent from court and had been consistently, so absent a number of times before.

Counsel on behalf of the plaintiffs applied to the same High Court for an order re-listing the suit. The application came up for hearing before Okocha, J. Before her, the applicant’s counsel, relying on the copious facts deposed to in the supporting affidavit, tried to explain why neither the applicants nor their counsel were present in court.

The respondent’s counsel, relying on equally copious facts deposed to in a counter-affidavit filed in opposition, argued strenuously to convince the court, that the applicants had not satisfactorily explained their absence to entitle them to the exercise of the court’s discretion.

In addition, counsel raised the issue that the court lacked the competence to restore the suit to its hearing list, same having been dismissed as opposed to being merely struck out.

It was counsel’s view that in the circumstances, the only remedy open to the applicants, was by an appeal to the Court of Appeal against the order of dismissal. The applicants’ counsel in reply urged the Court to take judicial notice of the fact that the dismissal was not on the merit and so “could not be considered absolute” especially, having regard to the provisions of Order 37, rule 8 of the Rivers State High Court (Civil Procedure) Rules, 1987.

Okocha, J., in her ruling, delivered on 24/1/97, took the issue of her competence to make the order for re-listing in the circumstances first. She ruled that, she was not competent to make the order sought because “it would be requiring this court to review and/or correct the ruling of my brother Judge, having concurrent jurisdiction with me.” She went on to reason and conclude thus:

“The fact that the suit was dismissed is indicative that this court (the High Court) finally determined the matter.

As opposed to if the suit was struck out. The suit having been dismissed by the High Court, the High Court has thus, finally determined it, the matter can only be reviewed or corrected by a higher court which as in this case, will be the Court of Appeal. This court thus, cannot and does not, have jurisdiction to re-list a matter that has been dismissed by it. The learned Counsel for the defendant/respondent has strongly argued that this court, cannot grant the relief sought as the court cannot re-list a matter dismissed by it. That the option open to the applicant was to appeal against the ruling dismissing the suit and that Order 37 rule 6(2) High Court Rule by which the application was brought, was inapplicable to the issue before the court. I entirely agree with learned Counsel on all the points he has raised in opposition to this application.

I hold that the suit having been dismissed, this court cannot re-list it, it is only the Court of Appeal that can review this decision, set it aside and order for its re-listment.

Having held thus, I cannot go into the merits of the application as I have no jurisdiction to do so, this court being functus officio in the matter. The application therefore lacks merit. I hereby, dismiss it with N500.00 costs awarded-to the defendant/respondent.”

Thus, as can be seen, she declined to rule on the other issue canvassed before her, i.e., whether or not the applicants before her had satisfactorily explained their absence in court, when their suit was thrown out and generally met the other requirements for obtaining a re- listing.

Aggrieved by the ruling, the applicants have appealed to this court on two grounds. Alhaji F.A. Oso, for them, has formulated two issues. As he himself has readily acknowledged, by the way he argued the two issues together, only one issue is really called for in this appeal and that is whether or not because Abbey-Kalio, J., had expressed his order to be one of dismissal, the suit so dismissed, could no longer be restored to the hearing list by the same High Court.

Taking on the two issues together, Alhaji Oso started by referring to Order 37, Rule (of the Rivers State High Court (Civil Procedure) Rules, 1987, which empowers the court to dismiss the plaintiff’s action, if he fails to appear at the hearing. He then pointed out that the same rules of court, appreciating the injustice that would be done to the plaintiff, were his action to be finally dismissed other than on merit, introduced a saving provision in rule 9, which directs that –